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ARTICLE ID 201828

$________ Premises liability – Hazardous premises – Negligent construction of exterior fixed access ladder during renovations of large building two years earlier – Weld on rail of ladder experiences significant "deflection" as plaintiff roofing mechanic, called to scene to trouble shoot roof leak, is descending – Eight foot fall – Injuries to non-dominant shoulder and elbow – Arthroscopic surgery.

Middlesex County, NJ

The male plaintiff, a 34-year-old roofing mechanic, who was called to the defendant owner of a multi-level building to troubleshoot a roof leak approximately two years after major renovations were completed, contended that a that the railings of a fixed exterior access ladder were improperly welded, resulting in excessive deflection. The plaintiff asserted that because of the movement of the side railing, he fell approximately eight feet to an air conditioning compressor, impacting/jamming his left elbow on the compressor suffering injuries to both his elbow and left shoulder. The plaintiff claimed that the main defendant, a subcontractor of the G.C., who had a $________ policy, and who engaged in the welding, negligently performed this work.

The weld consisted of inside and outside aspects. The plaintiff maintained that destructive testing reflected that most of the outside weld was removed by grinding by this defendant after the weld was made. Grinding of the weld is done for aesthetic purposes. The plaintiff contended that the destructive testing showed that the outside weld was a mere 1/16th of an inch thick, compared to the inside weld which was 1/8th inch thick. The defendants, who did not perform the actual construction and welding of the ladder, maintained that the cause of the incident was the negligence of the subcontractor that did the negligent work.

The plaintiff also asserted that the defendant steel contractor, who was obtained by the defendant G.C., and who obtained the subcontractor that constructed the ladder, had provided plans that called for railings and extensions to be one continuous piece of metal and not welded. The plaintiff maintained that this defendant and the defendant general contractor negligently failed to adequately inspect the work and determine that the ladder was not manufactured in conformance with the plans.

The plaintiff further contended that at the conclusion of the construction, the defendant initial architect firm had noted the defect and advised the G.C. that the ladder should be corrected. The plaintiff maintained that the G.C. failed to do so, and that this architect negligently failed to follow through and ascertain that it hadn’t been done. The plaintiff also named a second architectural firm who began working after the first architect was no longer involved in the project. The plaintiff contended that this defendant should have also investigated and determined that portions of the work needed correction.

The evidence also disclosed that the defendant inspection company was asked by the owner to go out to the site and review the punch list to see if the items were completed. Following an inspection, this defendant provided the opinion that although the ladders and railings have not been reinforced; they appeared to be stable enough for roof and equipment maintenance. The plaintiff contended that this defendant inspection company acted in a negligent manner.

The plaintiff asserted that he sustained an avulsion of the lateral epicondyle, with fracture of the left radial head, necessitating an arthroscopic repair of the ulnar collateral ligament. The plaintiff also suffered a left shoulder tear of rotator cuff and superior labral tear requiring extensive debridement of the glenohumeral joint, along with a rotator cuff repair and resection of the labral tear. The plaintiff maintained that he will permanently experience pain, stiffness, weakness and limited motion of the left shoulder, which is made worse with any type of physical activity. The plaintiff’s proofs further reflected that the elbow clicks and locks at times with tightness around the elbow and cramping with tingling.

The evidence disclosed that the plaintiff subsequently started his own company as a carpenter doing trim work. He continues in this capacity installing trim, replacing doors and windows, as well as home remodeling jobs. The plaintiff’s orthopedist would have contended that the plaintiff should not engage in this work and that the continuation will probably hasten deterioration of his condition. The plaintiff’s economist would have discussed likely significant future losses.The case settled after mediation for $________. The settlement was allocated as follows: $________ from the company constructing the ladder and performing the welding; $________ from the subcontractor that hired the first defendant; $________ from the general contractor; $________ from the owner; $________ from the first architect who created the punch list; $________ from the second architect who found that the ladder was sufficiently stable for roof and equipment maintenance and $________ from the employer, who was named as a third-party defendant on a contractual indemnification theory.

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